Early Test for Obama on Domestic Spying Views

By JAMES RISEN and ERIC LICHTBLAU

Published: November 18, 2008

President-elect Barack Obama will face a series of early decisions on domestic spying that will test his administration's views on presidential power and civil liberties.

The Justice Department will be asked to respond to motions in legal challenges to the National Security Agency's wiretapping program, and must decide whether to continue the tactics used by the Bush administration -- which has used broad claims of national security and ''state secrets'' to try to derail the challenges -- or instead agree to disclose publicly more information about how the program was run.

When he takes office, Mr. Obama will inherit greater power in domestic spying power than any other new president in more than 30 years, but he may find himself in an awkward position as he weighs how to wield it. As a presidential candidate, he condemned the N.S.A. operation as illegal, and threatened to filibuster a bill that would grant the government expanded surveillance powers and provide immunity to phone companies that helped in the Bush administration's program of wiretapping without warrants. But Mr. Obama switched positions and ultimately supported the measure in the Senate, angering liberal supporters who accused him of bowing to pressure from the right.

Advisers to Mr. Obama appear divided over whether he should push forcefully to investigate the operations of the wiretapping program, which was run in secret from September 2001 until December 2005.

Mr. Obama recently started receiving classified briefings on intelligence operations from Mike McConnell, the director of national intelligence. The Obama transition team declined to say whether Mr. Obama had been briefed on the agency's eavesdropping operations.

His transition team also declined requests to discuss his current views on domestic surveillance or how his administration would respond to legal challenges growing out of it. But there has been no shortage of debate among lawyers involved in the challenges to the program.

''I don't think President-elect Obama embraces Dick Cheney's theory of unfettered presidential power,'' said Jon B. Eisenberg, a San Francisco lawyer involved in one lawsuit against the wiretapping program. ''So if President-elect Obama doesn't embrace that theory, one would expect a change in the direction of how the new administration handles this litigation.''

But other legal and political analysts suggest that Mr. Obama, as president, may be more willing to accept the broadened presidential powers that he once condemned as a candidate, particularly since Congress has approved expanded surveillance powers for the government.

In the proposal in June that Mr. Obama ultimately voted to support, Congress set up a new surveillance framework that gave intelligence officials much broader authority to eavesdrop on international communications without prior court approval.

One of the first clues of how the Obama administration will deal with the issue of domestic surveillance may come in a court case in Alexandria, Va., where a judge has ordered the Justice Department to turn over material from the National Security Agency and other intelligence agencies on possible eavesdropping on Ali al-Timimi, an Islamic leader convicted of supporting terrorism. The Justice Department has never acknowledged that it has used intercepts from the N.S.A. program in any criminal or civil case, which could be unlawful because the wiretaps were conducted without court warrants.

Mr. Timimi has claimed that he did not get a fair trial because prosecutors secretly used N.S.A. wiretaps in his case, and he also argues that the government has turned over to the court only intercepted conversations that make him look guilty, while withholding those that might prove he is innocent. A recently unsealed transcript, citing a closed hearing, strongly suggests that the wiretaps were used in Mr. Timimi's criminal trial.

''We believe that the undisclosed interceptions already uncovered in this case are serious and knowing violations of federal law,'' said Jonathan Turley, a lawyer for Mr. Timimi.

Meanwhile, an Islamic charity in Oregon that had its assets frozen by the Treasury Department on the ground that it was also supporting terrorism is pushing ahead with a lawsuit of its own. The Obama administration must decide whether to continue to use the state-secrets privilege in order to block the disclosure of information about any N.S.A. eavesdropping.

The charity, Al-Haramain Islamic Foundation, is charging, based in part on a classified document that the government mistakenly gave to its lawyers, that it was the target of wiretapping without warrants. Lawyers for the group say they believe that the N.S.A. listened illegally not only to the international phone calls of members of the charity itself, but also to the calls of two of its lawyers in Washington.

Mr. Eisenberg, a lawyer for Al-Haramain, said the Justice Department had frustrated efforts to develop evidence in the case both by invoking the state-secrets claim and by refusing to grant security clearances to some members of the charity's legal team.

''In every way, they've stonewalled us, and the new administration can change all that,'' Mr. Eisenberg said. ''They can take the blindfolds off.''